The European Union is committed to supporting democracy and human rights in its external relations, in accordance with its founding principles of liberty, fundamental freedoms and the rule of law. Yet, human rights violations occur within the territory of the EU as well. Violent and illegal “pushbacks” are constantly carried out at the EU’s external borders in response to increasing migration flows and the continued arrival of prospective asylum seekers. It has been reported that these operations frequently include breaches of international and European law, as well as violations of human rights. According to the European Centre for Constitutional and Human Rights (ECCHR), the number of persons pushed back by the EU and who are not given the possibility to apply for international protection amounts to tens of thousands per year. While the number of deaths which occur in the context of such pushback operations remains unknown, the violence involved is well reported by the Border Violence Monitoring Network (BVMN), The UN Refugee Agency (UNHCR) and Human Rights Watch (HRW), as well as other organisations. Evidence has shown that in 2019 and 2020, more than 12,000 persons, including children and minors, have been subject to physical and psychological violence inflicted by border police. These violent actions include intimidation, confiscation or destruction of people’s belongings, and inhumane and degrading treatment, such as depriving the victims of food and basic services. In March 2020, brutal pushback operations carried out by Greece at the Greek-Turkish border resulted in at least two deaths. 

The interplay between refugee protection and border control 

The context outlined above demonstrates a dramatically inhumane side to the protection of our external borders, and the silence of the European Union in this regard has been deafening. While the European Council qualified such acts as “effectively protecting EU’s external borders” from “illegal crossings”, without mentioning the serious mistreatment of people on the move, the EU Commissioner for home affairs Ylva Johansson recently stated that “pushbacks are against EU law” and that “we cannot protect our European borders by violating our values.” These contrasting statements and attitudes show that the interplay between refugee protection and border control is a complex issue, one which raises conflicting policy considerations. On the one hand, international and European law, namely the recast Asylum Procedures Directive, requires states to grant fair and equal access to international protection to all migrants, but on the other, states have the obligation to defend their borders and deny entry into their territory to those who do not fulfil the conditions set out in EU law. 

Lately, however, the European Union seems to be completely ignoring the international obligations surrounding asylum, primarily viewing forcibly displaced persons as a security threat rather than as rights holders. Several European states are actively carrying out pushback operations, and most governments turn a blind eye to such flagrant human rights violations. The European Commission also fails to properly hold them accountable. Additionally, the European Border and Coast Guard Agency (Frontex), whose role is to ensure European integrated border management at the external borders, is regularly accused of supporting or enforcing these pushbacks. Several countries have used domestic law to “legalise” pushbacks, constructing a legal basis to justify that migrants be denied the possibility to register an asylum claim after entering the territory of the European Union. 

Policies and legislations at the European and member state level have been equipped with multiple operational and legislative tools aimed at preventing non-authorised people to cross borders, therefore giving priority to securing external borders over respecting fundamental rights of displaced people. The use of these tools, namely Eurodac and Frontex, as well as decisions to refuse entry and expulsion and extradition orders, not only involves violations of the human right to apply for international protection in the European Union, but it also creates bottleneck situations, which leave people in intolerable living conditions and deprived of their liberty. For instance, in Bosnia and Herzegovina, as well as on the Greek islands, migrants are trapped in overcrowded reception facilities, with lack of access to protection and basic needs, or medical and legal assistance. The failure of the EU to take a strong stance in this regard is extremely serious, as it suggests that the desire to curb arrivals is more important than protecting human lives. 

The current trend which shows illegal pushbacks as a central aspect of EU’s asylum system is partially due to the lack of solidarity and fair sharing of responsibility between member states in the implementation of asylum and migration policies, as required by Article 80 of the Treaty on the Functioning of the European Union (TFEU). Inconsistent implementation of the Common European Asylum System (CEAS) by member states and a low level of compliance to EU rules are therefore the main drivers of human rights violations, and the infringement proceedings launched by the Commission in this regard are too few and non-efficient. 

Last year, in the European Parliament, Tineke Strik, member of the Greens, urged the European Commission to face up to its responsibilities, noting that the trend towards increasing violence and human rights violations at EU’s external borders requires a strong integrated response at the EU level. Such a response should include independent monitoring measures, effective implementation, and prohibition of impunity. If European migration policies are to function properly, it is necessary to promote the coexistence of reasons of public order and border control on the one hand, and reasons for the protection of fundamental rights on the other. Border externalisation strategies strongly clash with the solidarity principle on which the Union is founded, and although member states have the right to control their borders and grant national security to their populations, this cannot happen at the expense of the protection of the human rights of migrants. 

Pushbacks and non-refoulement under international and European law

Pushbacks, whether violent or not, are a flagrant violation of international law, including the principle of non-refoulement and the right of migrants to claim asylum after they have crossed a border. The principle of non-refoulement, grounded in international and European law,  prohibits the removal or expulsion of an individual back to a country where there are substantial grounds for believing that, upon return, the person would be at risk of persecution, torture, ill-treatment or other serious human rights violations. This applies to all individuals, irrespective of their status. Under EU law, the right to asylum is provided for by Article 18 of the Charter of Fundamental Rights of the European Union, whereas the prohibition of refoulement is asserted in Article 19 of the Charter. According to Article 4 of the Schengen Borders Code, border control activities must fully comply with the requirements of the 1951 Refugee Convention relating to the Status of Refugees and the obligations related to access to international protection. These requirements apply to all border controls. 

In 2019, three complaints have been filed against Croatia by three Syrian citizens who were pushed back to Bosnia and Herzegovina in their attempt to seek international protection in the Union. In these circumstances, the European Court of Human Rights (ECtHR) ruled that Croatia had breached Article 4 Protocol 4 (prohibition of collective expulsions) and Article 13 (right to an effective remedy) of the European Convention on Human Rights (ECHR). In addition to that, given inhumane living conditions of asylum seekers in Bosnia, as well as the country’s inadequate asylum system, it was claimed that border pushbacks also violate Article 3 (inhuman or degrading treatment). 

Also in M.A. and Others v. Lithuania it was judged that a failure to allow asylum-seekers to submit a claim for international protection and removing them to where they come from without carrying out a security assessment, amounts to a violation of Article 3 of the ECHR. Whereas the Convention does not provide for a right to asylum as such, turning away an individual within a state’s jurisdiction equals putting them at risk of torture or inhuman or degrading treatment. In the context of the judgement in question, the applicants attempted three times to enter Lithuania through Belarus, and were refused the right to apply for asylum on grounds of a lack of the necessary travel documents. The Lithuanian officials failed to comply with national law, which requires to accept asylum applications and forward them to a competent authority for examination and status determination. 

The case of Croatian pushbacks

Between 2018 and 2019, a 21-year-old Syrian refugee crossed the Bosnian-Croatian border six times, in order to escape the malfunctioning asylum system and degrading living conditions in Bosnian refugee camps. Every time, him and other asylum-seekers were pushed back by the Croatian border police, who made use of torches and pepper spray to blind the victims, to then subject them to prolonged violent assaults. No individual assessment of the migrants’ asylum claims took place, and they were forced back over the border. This Syrian’s case is not an isolated incident. Evidence shows that Croatia regularly operates collective expulsions of migrants and asylum-seekers to Bosnia and Herzegovina According to multiple reports from October 2020, these pushbacks have occasionally involved sexual abuses, beatings, robbery, and unlawful detention. Although Croatia is a signatory to the Geneva Convention on the Status of Refugees, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights, in so doing, Croatian officials ignore the rights of the people seeking protection in Europe, acting as if the border area was a legal vacuum. 

While reports of abuse and violent pushbacks from the Croatian police date back to 2016, the Croatian government repeatedly dismisses these allegations. The Interior Minister Davor Božinović and the Prime Minister Andrej Plenković even questioned the sources of the information, refusing to acknowledge that persons subjected to pushbacks were on Croatian territory and in the custody of Croatian officials. In addition to that, Croatian authorities and government officials claim that persons who enter the country irregularly have no right to apply for international protection. Statements such as these do not demonstrate a poor understanding of the law. Instead, they show the dominance of a political perspective in which migrants suspected of having irregularly entered the Croatian territory are not believed to possess rights. This attitude is further confirmed by the claim of Kolinda Grabar-Kitarović, Croatian politician and former President, who confirmed the existence of pushbacks, but denied their illegality. The BVMN reported that Ms. Grabar-Kitarović disregarded European law concerning the right to asylum, as she affirmed that “we are talking about illegal migration, people trying to cross into Croatia illegally and the police pushing them back into Bosnia-Herzegovina”. “Of course when you are pushing people back, a little force is needed”, she added. 

As highlighted by the ECCHR, the lack of concerted political and legal actions to fight this widespread disregard for human rights results in a generalised culture of impunity surrounding pushbacks and explains the persistence of such practices all over Europe. The alarming situation at some of the EU’s external borders, such as Croatia, sheds light on the need to improve migration and asylum policy and governance, and implement humane and integrated rights-based practices.

The proposal for an Independent Monitoring Mechanism


In September 2020 the European Commission proposed its New Pact on Migration and Asylum that the President Ursula Von Der Leyen defined as the “European solution to rebuild trust between Member States and to restore citizens’ confidence in our capacity to manage migration as a Union”.  With the aim of ensuring member states’ compliance with fundamental rights and EU laws, Article 7 of the proposal for a Screening Regulation sets out the obligation for each member state to establish an Independent Monitoring Mechanism for fundamental rights, which would apply to all border controls done by member states and not only in the framework of operations conducted by Frontex. The Screening Regulation concerns people who try to cross the border illegally, as well as people illegally staying in the country. According to the proposal, this mechanism will “ensure compliance with EU and international law, including the Charter of Fundamental Rights, during the screening”, and “that allegations of non-respect for fundamental rights in relation to the screening, including in relation to access to the asylum procedure and non-compliance with the principle of non-refoulement, are dealt with effectively and without undue delay”

The European Council on Refugees and Exiles (ECRE) and other NGOs have identified a few points of concern relating to the proposed mechanism. Among them, we notice doubts regarding the scope of the mechanism, accountability of member states and the consequences for countries which commit identified violations of fundamental rights. First, the scope of the mechanism should be extended to include cross-border events, and act upon information received from individuals who find themselves outside the territory of the state where the alleged violation has taken place. Secondly, will the new mechanism be able to trigger concrete action when detecting a breach of fundamental rights? The ECRE and others stated that to combat the common practice of member state authorities dismissing their need to act, the proposal should be more specific about the follow-up process in regards of legal advice and effective access to justice. Finally, what happens if member state governments fail to cooperate with the mechanism, for instance, by failing to grant access to border areas, documents, or locations? Concrete consequences in terms of political and financial costs should be built for non-complying states. 


Overall, although the proposal for the New Pact represents a promising opportunity to move forward, it falls short of expectations. Legal and political remedies against member states breaching EU law are not sufficiently provided for by the Pact, which might lead the latter to be non-effective with regards to addressing breaches of fundamental rights. In light of the brutal violations of human rights described above occurring all over Europe, including sexual abuses, robbery, beatings and torture by border officials, there is an urgent need for the EU and member states to trigger concerted action and to implement a robust monitoring system capable of holding member states into account for unlawful activities, before it is too late.

By Clara Piazza

Clara Piazza is currently working as a Research and Projects Assistant at Rede Sem Fronteiras Europe, while pursuing her double master’s degree in European Governance at both Utrecht University and the University of Konstanz. Her main areas of interest are EU migration policy and governance, human rights violations and environmental justice.

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